Ruling bolsters federal protection for U.S. wetlands, tributaries
Raleigh--In an important decision that affirms federal protection of wetlands, a federal judge has ruled that the development company of Holly Ridge Associates acted illegally when it ditched and drained over 200 acres of wetlands in Onslow County, North Carolina without a permit. The ruling comes in a case brought by the Southern Environmental Law Center on behalf of the North Carolina Shellfish Growers Association and the North Carolina Coastal Federation. The case arose from massive wetland ditching and drainage in southeastern North Carolina during the late 1990’s.
In a 44-page decision issued on July 25, Judge Terrence Boyle of the Eastern District of North Carolina ruled that wetlands, small tributary streams, ditches and other waters that are hydrologically connected to navigable waters of the U.S. – even if they are miles away – remain protected under the Clean Water Act. This means that no discharge of pollution, including stormwater sediment and fill material from land-disturbing activities, can take place in these waters without a permit
“It doesn’t matter how far away the wetland or creek is. The important thing is whether pollution from those smaller waters could contaminate water quality downstream,” said SELC senior attorney Derb Carter, the attorney in the case. “This ruling provides a tremendous environmental safeguard since the vast majority of America’s water resources are inter-connected.”
In 1998 and 1999, Holly Ridge Associates constructed a 12-mile network of ditches to drain wetlands in Onslow County adjacent to Stump Sound, the state’s premier oyster and clam waters. The ditches carried stormwater runoff and sediment into tributaries that connect to Stump Sound.
Holly Ridge argued that the wetlands and tributary streams were “isolated” waters according to a 2001 U.S. Supreme Court ruling, known as the “SWANCC” decision (Solid Waste Agency of Northern Cook
See www.SouthernEnvironment.org for a copy of the judge’s decision
County vs. U.S. Corps of Engineers)and therefore not covered by the Act. In that case, the Court ruled that a specific “isolated” pond in Illinois was not protected, reversing decades of wetlands law. The ruling created uncertainty about the scope of protection for water bodies that are not immediately adjacent to navigable waters, and the potential for unpermitted destruction and pollution of wetlands and other waters.
However, Judge Boyle ruled that if pollution from smaller water bodies, such as wetlands, tributaries, intermittent streams and manmade drainage ditches, can reach navigable waters downstream through a hydrological connection, then those smaller waters are also protected. He wrote: “Defendants argue that this network of wetlands cannot be deemed a water of the United States because the Corps’ regulations provide that wetlands adjacent to other wetlands are not waters of the [U.S.]. ... However, taken to its logical conclusion, defendants’ position means that only the first millimeter of wetlands adjacent to a jurisdictional water could be covered by the CWA. This result is absurd, particularly where there is evidence of a hydrological connection within the wetland network.”
Judge Boyle also rejected the company’s argument that the ditching and draining was exempt as a “forestry” activity. He said the ditches, the gullies from erosion on the banks of the ditches, and the site itself were all “point sources” of stormwater and sediment pollution, and therefore required discharge permits under the Act – even if the activities are for forestry purposes. The environmental groups contend the ditching was for land development and not forestry. In a related state case, an administrative judge has ruled there is no credible evidence the ditching and drainage was for forestry.
Lastly, Judge Boyle’s ruling also reaffirms citizens’ right to take enforcement action under the Clean Water Act. Holly Ridge had sought to dismiss the lawsuit, claiming the environmental groups had no legal standing to challenge the ditching and drainage. The judge also rejected the company’s procedural move to shift attorney and court costs to the environmental groups, saying such a move would create “enormous disincentives” and prevent citizens from vigorously enforcing environmental protections under the Act.
“This decision reaffirms that we have the laws on the books to keep our coastal waters clean,” said Todd Miller, executive director of the North Carolina Coastal Federation. “It’s unfortunate that citizens have to resort to lawsuits to ensure that environmental standards are enforced.”
“It is gratifying that people who make their living from clean water have the right to protect that water and their livelihoods,” said Jim Swarzenburg, president of the North Carolina Shellfish Growers Association.
Todd Miller
Executive Director
North Carolina Coastal Federation
3609 Highway 24 (Ocean)
Newport, NC 28570
252-393-8185
252-393-7508 (fax)
www.nccoast.org
|